Storytelling for Lawyers (13 page)

This template provides a suggestive framework that accurately anticipates how Spence propels the story forward by developing Karen Silkwood's progressive conflict against the forces of antagonism aligned against her. Initially, there is Kerr-McGee's “unfairness” (negligence) toward the workers
at the plant. This negligent inattention allows dangerous plutonium to escape from the plant, contaminating the workers with carcinogenic plutonium; Kerr-McGee does not take precautions to protect the workers and turns a blind eye to the problems, more concerned about profits than the fate of the workers. This disturbance of the anterior steady state and the depiction of the initial trouble manifest the “contrary” value of unfairness. Then Spence's storytelling moves further down an ordered progression, from unfairness toward a “contradictory” value of illegality and injustice. Here, protagonist Karen Silkwood is cast onstage to fight against the corporation with her efforts at unionization, with her prophetic warnings, and with her revelations about nefarious and intentional misconduct authorized by Kerr-McGee covering up defects in the crystallography of the fuel rods shipped to a breeder reactor in Hanford, Washington, which she plans to turn over to a reporter from The
New York Times
at a final meeting. Kerr-McGee responds to her efforts by attempting to discredit and then silence her. (“What was the motive for them to do that? … [T]he motive of people [was] to stop her. ‘She knew too much.'”)
¹¹⁶
The illegality and injustice of Kerr-McGee's conduct spills over into the courtroom, where Kerr-McGee's attorneys and witnesses go beyond merely attempting to drag the jury down into the mud springs, when defendant points the “long, white, bony finger at [Silkwood]. It is easy to blame.”
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There is no evidence to support these allegations—“Not one person said she contaminated herself as a motive to get even, or to help the union. Not one from that witness stand … it was only Mr. Paul [defendant's attorney]. They are all his theories.
¹¹⁸
… They accused her then, and they accuse her now, and they continue to accuse her.”
¹¹⁹

Finally, in the last movements of the plot, the full articulation of the value of justice at stake in the story reaches the end of the line—tyranny—as The Beast finally emerges visible from beneath the surface of the mud springs and Spence proposes his vision of the future in the Cimarron Syndrome, where workers are “dying like men in a plague” to satisfy the ravenous appetites of greedy and profiteering Beast Kerr-McGee.
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It is a time where Silkwood's warnings have gone unheeded, a “time of infamy,” “worse than the days of slavery” when “government held hands with these giants, and played footsie.”
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This appears to complete the progression, but it is a false ending, a premature closure; it is a negative ending that, in fact, suggests that it is not too late for the possibility of a big “upbeat” ending that only the jury can provide.

The point here is not that Spence employed McKee's formula intentionally as a structured model or form on which to construct his story structure and create profluence in the narrative. Rather, it is that the conflict develops along a continuum shaped by the genre conventions of melodrama, and this
trajectory is all but inevitable as soon as Spence chooses the genre for his storytelling. That is, narrative conventions shape his storytelling in this closing “argument” every bit as much as do legal rules and theories, the rules of evidence, or even the evidence itself that was introduced at trial. Consequently, in retelling his story in his closing argument, Spence cannot begin easily by initially articulating the most extreme version of the value at stake—tyranny—and then working backward in his story to discuss the lesser values. As McKee explains, “A story must not retreat to actions of lesser quality or magnitude, but must move progressively forward to a final action beyond which the audience cannot imagine another.”
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Spence's story is also shaped, of course, by the constraints of his legal theory of the case, the judge's instructions, and the requirement that he tell a story that comprehensively and fairly represents and references the evidence presented at trial. Otherwise, he risks destroying his credibility and losing his case in the battle of competing storytelling at trial.

As a final note, let me add that the fact that both legal and popular storytelling practices are genre-bound does not diminish the power or gravity of these forms. Popular melodramas, whether in cinema or the courtroom, are also attempts to approach an understanding of important cultural values. As Peter Brooks observes about melodrama (in art and, perhaps, in life as well):

We do not live in a world completely drained of transcendence and significance. Melodrama daily makes the abyss yield some of its content, makes us feel we inhabit amid (larger) forces, and they amidst us. A form for secularized times, it offers the nearest
approach
to sacred and cosmic values in a world where they no longer appear to have any certain ontology or epistemology.
¹²³

Likewise, we employ courtroom storytelling practices, melodramas, and myths to find the truth, to do justice, and to answer profound questions about ourselves in the process. The fact that the stories told in the courtroom are often repeated, often formulaic, and often developed through conventional forms does not diminish their power or significance. Nevertheless, it is curious that to find the truth, to do justice, and to discover meaning in complex courtroom cases such as
Silkwood
we rely on myth and melodrama to answer riddles about a protagonist's identity, to visualize a Beast emerging from beneath the surface of rural western mud springs, and to track the development of the forces of antagonism through a progression that often seems borrowed from a commercial Hollywood entertainment film.

CHARACTER, CHARACTER DEVELOPMENT, AND CHARACTERIZATION

The Western conception of the person as a bounded, unique,
more or less integrated motivational and cognitive universe,
a dynamic center of awareness, emotion, judgment,
and action organized into a distinctive whole and set contrastively
against a social and natural background is, however
incorrigible it may seem to us, a rather peculiar idea
within the… world's cultures
.

—
CLIFFORD GEERTZ
, “T
HE
N
ATURE OF
A
NTHROPOLOGICAL
U
NDERSTANDING
”

Character has been called “arguably the most important single decision” made by practitioners of many modern storytelling forms, especially the novel.
¹
The novel elevates and dramatizes the art of psychological characterization, of character development, and of motivation; as a form, it squarely places the art of characterization at the forefront of storytelling practice. Indeed, theorists have observed that the primary subject of the modern novel is consciousness and that “[t]he center … of all great literature … is character.”
²
In the somewhat reductionist vocabulary of more recent practitioners of visual cinematic storytelling and screenwriting, modern realist novels are typically “character
driven.” Movies, however, are not; movies are typically “plot based.” The focus, especially in commercial entertainment films, is on developing a compelling plot; the characters are shaped and developed in character “arcs” constructed in relationship to, and in service of, the core narrative structure of the plot. Characters are subservient to the demands of plot. Some of the reasons for this are pragmatic: there simply isn't the room or the time available in a commercial two-hour plot to flesh out fully developed characters and characterization. And there isn't the need since the actors are already visible on the screen and can be seen and interpreted by the audience. The audience for a film, absorbing the story in a single viewing, typically does not have the inclination to sift through a gradual novelistic unfolding of character, especially when much of this material may be “irrelevant” or superfluous to the demands of a carefully circumscribed narrative “plot” structure.

Additionally, there are no apparent structural mechanisms or visual techniques typically available in film that allow the story to go within or extensively explore the “consciousness” of the various characters, to radically shift perspectives from character to character, or to provide extended internal or descriptive ruminations on the “character” or internal psychology of the various players in a story; these are the strengths of the novel. In contrast to the novel, there is a certain reductionist and pragmatic approach to character development typical in popular film. It is also why novelists, including those who have also written superb screenplays, often denigrate cinematic storytelling practices. As the novelist E. L. Doctorow puts it:

Fiction goes everywhere, inside, outside, it stops, it goes, its action can be mental. Nor is it time-driven. Film is time-driven, it never ruminates, it shows the outside of life, it shows behavior. It tends to the simplest moral reasoning. Films out of Hollywood are linear. The narrative simplification of complex morally consequential reality is always the drift of a film inspired by a book. Novels can do anything in the dark horrors of consciousness. Films can do close-ups, car drive-ups, places, chases and explosions.
³

Now here is the curious rub about legal storytelling practices: storytelling in the law is equally reductionist and plot driven, strongly akin to conventions of commercial entertainment storytelling practices. Indeed, often characters in law stories seem borrowed from a repository of “stock” film characters.

This relationship between character in popular film and legal storytelling practice is not coincidental: as in commercial Hollywood films, characters in
legal stories are developed in close relationship to plot. There is simply insufficient room, and typically few literary techniques available, for developing fully formed characters (at least, fully formed within the tradition of the realist novel). Indeed, characters in law stories are subservient in their actions to the demands of the plot. Typically, characters presented in law stories simply lack the psychological complexity and the interior life of characters depicted in the novel. The primary concern in legal storytelling is how the story will end, often embodied in the decision or verdict of a jury at trial, or announced in the words “it is so ordered” in an appellate opinion. Consequently, the focus is not on creating interesting characters who will compel the imaginative attention of the audience; rather the emphasis is on characters and characterization as means to a particular plot outcome. Does this mean that character development in legal storytelling practice does not matter? Of course not. As we explore in this chapter, especially in a close reading of a carefully constructed closing argument in a criminal case, the effective creation, depiction, and casting of characters is profoundly important and often outcome determinative.

In the movie
The Maltese Falcon
, Sydney Greenstreet observes to the detective-protagonist portrayed by Humphrey Bogart, “My word, you certainly are a character, aren't you?”
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The audience knows intuitively that he is referring to some intrinsic quality within the detective that makes him compelling and provides a core psychological identity to him as a player in the drama. But what exactly is character? Is it a composition or cluster of various “characteristic” psychological traits and attributes? Is it the shell of appearance or physical description? Is it some controlling myth that dominates us, inhabits our soul, and compels us mysteriously in our conduct and our behavior? Or is it somehow the distillation and transposition of “real life” onto the page or screen or into the courtroom? Perhaps character is primarily a function of storytelling practice itself. Let me begin by observing that “character” has multiple, disparate and, often, conflicting meanings. Heraclitus observed that “[c]haracter is fate for a man.”
⁵
At that time, the gods were thought to be in control of the fates and, consequently, of character. Any individuality was stolen at the expense of the gods. Sophisticated and literary notions of complex psychological characterization, motivation, and individuated personality were simply not an order available on the narrative menu of the day.

Character is no longer controlled by the gods. In modern storytelling forms, complex psychological notions of character became most pronounced in the modern novel. As Edith Wharton famously pronounced, character has been the “main concern … of the novel” for the past two centuries; “the test of the novel is that its people should be
alive
,” and “[n]o subject in itself, however fruitful, appears to be able to keep a novel alive; only the characters in it can.”
⁶
According to David Lodge (and the illustrations are endless) the high-water mark for “character” was the “European” novel of the seventeenth through nineteenth centuries: “nothing can equal the great tradition of the European novel in richness, variety and psychological depth of its portrayal of human nature.”
⁷
In more recent days, and in more recent storytelling practices, including the literary novel in the twentieth century, character was often streamlined, as if in anticipation of the form of the movie, compelling F. Scott Fitzgerald to observe that “[a]ction is character.”
⁸
Most recently, in many popular storytelling practices, including in literary fiction, the importance and relevance of character and characterization is in decline. Characters are often reduced in complexity or presented in shorthand forms. It may be that there is no longer a shared cultural belief in the power of the individual to shape or control narrative outcomes. As Bob Dylan celebrated ironically in song, “Take what you have gathered from coincidence.”
⁹
That is, implicitly, character and the actions that appear to reflect a person's character are more a function of circumstance and environment. As the filmmaker and postmodern literary theorist Michael Roemer claims, “WE NO LONGER BELIEVE IN CHARACTER.”
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Put another way, our characters no longer control their own fate or destiny. Here is how Jerome Bruner states the proposition in expository form: